P L D 1956 Federal Court 209 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal, by special leave, from the judgment of a Special Bench of the High Court of Lahore refusing to set aside under section 99‑D of the Code of Criminal Procedure an order of the Provincial Government forfeiting under section 99‑A of that Code a book entitled "Jesus in Heaven on Earth." The book was written by Khwaja Nazir Ahmad, a zealous missionary of the Lahore sect of Ahmadis, and an Advocate of this Court. The author claims that it took him seven years to write the book, that in writing it he had to consult a thousand standard books, out of which 800 have been referred to in the text, that it was first published in April 1952, and became so popular that three thousand copies of it had to be reprinted in June of the same year, that the work has been translated in German, French, Italian and Arabic, that in recognition of its merit the French Academy conferred on him the degree of Doctor of Literature and that two learned German professors. expressed their desire to recommend it for the Noble Prize if Part 5 of it were printed separately. He also asserts that before its publication in book form the work was published in the `Islamic Review' of Lahore from August 1945 to November 1948, in "Paigham‑i‑Sulah" from 1950 to 1952, and in the weekly Light from 1950 to 1952 and that not only there was no agitation in the press against its publication or any protest by any Christian organisation, but that the comments, if any, were all favourable. He claims credit for the book on the ground that it is the result of his intensive research and that it represents his individual views and not the belief of any recognised religious sect. The High Court, however, has found that the publication is a violent attack on the basic beliefs of Christians inasmuch as, contrary to generally accepted Christology, it propounds the theory that Jesus was born of the wedlock of Mary with Joseph, that he did not die on the cross but was removed while still alive, that after his wounds had healed he and his mother came to Murree where the latter died and whence he himself proceeded to Kashmir where he also died, that Murree has been named after Mary whose grave also is to be found there and that the grave of Jesus is in Srinagar. By the following notification, dated the 16th April 1953, the Governor of the Punjab forfeited all copies of the book under section 99‑A of the Code of Criminal Procedure "No. 851‑53/564‑P. B.' In exercise of the powers con ferred by section 99‑A of the Code of Criminal Procedure, 1898, as amended by the Press Law Repeal and Amend ment Act, 1922, Code of Criminal Procedure (Third Amendment) Act, 1926 and the Criminal i aw Amendment Act 1927, the Governor of the Punjab is pleased hereby to declare to be forfeited to Pakistan Government, every copy, wherever found, of the book entitled `Jesus in Heaven on Earth' written by AI‑Haj Kbawaja N4zir Ahmad, published by the Woking Muslim Mission and Literary Trust, the Mosque, Woking, England, and Azeez Manzil, Brandreth Road, Lahore, and printed at the Civil & Military Gazette Ltd., Lahore, and all other documents containing copies or translations of or extracts from the said book on the ground that it contains matter the publication of which is punishable under section 295‑A of the P. P. C., as it tends to insult the religious beliefs of one of the classes of subjects in Pakistan. By order of the Governor of the Punjab, (Sd.) H. A. Majid. Chief Secretary to Government Punjab." It will be noticed that this notification of forfeiture proceeded solely on the ground that the book "contains matter the publication of which is punishable under section 295‑A of the P.P.C., as it tends to insult the religious beliefs of one of the classes of subjects in Pakistan." The appellant applied to the High Court under section 99‑B of the Criminal P. C., to set aside the order of the Punjab Government. Since the order of forfeiture was based on the ground that the publication of the book was punishable under section 295‑A of the P. P. C., the point raised by the appellant in the application was "that the book does not contain any matter the publication of which is punishable under section 295‑A of the P. P. C., or to which provisions of section 99‑A of the Criminal P.C. of 1898 can consequently be attracted," and that "in any case the ground given in the aforementioned notification does not warrant the order complained of." The Warned Judges found that the appellant's contention that the publication was not punishable under section, 295‑A was well founded, but they thought that this was not sufficient for the appellant to obtain an order to set aside the forfeiture unless he further showed that the publication was also not punishably under any of the other three sections, namely, 123‑A, 124A and 153A of the P. P. C. Taking that view they found that the publication was punishable under section 153A because. being an attack on the basic doctrines of Christianity it could tie said to contain matter which promoted or was intended to promote feelings of enmity and hatred between different classes of citizens in Pakistan. In the appeal before us two points have been raised by the appellant, who has himself argued his case, namely, that the High Court having held that the book did not offend against section 295A, had no jurisdiction to go into the question whether it fell within the ambit of section 153A, and that the book does not in fact fall within the mischief of that section. Whsle repelling the first contention Mr. Justice Kayani observed :‑ "A preliminary objection raised by Kh. Nazir Ahmad that since the notification is based only on section 295A, P. P. C., the argument should be confined to that section, may at once be repelled. The Government may forfeit a book under section 99A of the Code of Criminal Procedure if it contains matter punishable under any of the three sections of the Penal Code mentioned therein, namely, section 124A, section 153A and section 295A, and under section 99D of the Code of Criminal Procedure, the High Court. sets aside the order of forfeiture `if it is not satisfied that the issue of the . . , . . . book . . . . . . contained seditious or other matter of such a nature as is referred to in subsection (1) of section 99A.' That is to say, we are not concerned with the ground stated in the orders : we are concerned with the grounds stated in section 99A." Mr. Justice Shabir Ahmad expressed himself as follows on this point: "I agree with the order proposed by my learned brother but will add just a few remarks of my own. It is difficult to come to a definite finding that the book falls within the purview of section 295A of the P. P. C which on its language is applicable to those insults to religion or religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. It is true that section 295A was enacted to counteract the effect of the decision of Dalip Singh, J. in Raj Paul v. Emperor (A I R 1927 Lah. 590), but it is doubtful if the section has achieved that object. However, there is no difficulty in coming to a finding that the book offends against section 153A of the P. P. C. and the question that arises is if the order of the Provincial Government can be upheld on a ground other than the one which the Government as of the view was applicable to the case. The relevant part of section 99D of the Code of Criminal procedure is as follows :‑ "On receipt of the application, the Special Bench shall if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in subsection (1) of section 99A, set aside the order of forfeiture." The plain meaning of the above part of section 99D is that the order of the Provincial Government passed under section 99A can be set aside only if is could not have been passed on any of the grounds mentioned in section 99A and not merely on the ground that the writing etc., which has been forfeited contains matter which though it falls under section 99A of the Code of Criminal Procedure does not offend against that section of the Penal Code which the Provincial Government was of the view that it offended. In this connection it cannot be overlooked that the order of forfeiture passed by the Provincial Govern ment is not a charge to which the person against whom the order is passed has to plead when he comes to the High Court, but even if it were deemed to be a kind of charge, there could be no objection to altering it at a subsequent stage provided the alteration did not take any of the parties by surprise. If the legislature had intended that the order of the Provincial Government with regard to forfeiture was to be the only ground on which the High Court was to decide whether or not that order should be set aside, section 99‑D would have said that if the writing etc., is not of the kind it was stated by the Provincial Government in its order to be, the order of forfeiture would be set aside by the High Court. The offences dealt with by sections 153‑A and 295‑A of the P. P. C., are to some extent similar in nature and if prejudice, which is a relevant consideration when one is dealing with the question of the alteration of a charge, were relevant for the purposes of section 99‑D of the Code of Criminal Procedure i would say that in view of the fact that the petitioner vas given full opportunity to show that the writing objected to did not fall within section 153‑A of the P. P. C., the petitioner has no ground for com plaining that he had beers taken by surprise and therefore prejudiced:" The third Judge merely agreed "with my brother". As after hearing full arguments on this part of the case we are of the view that the appellant's contention is sound and must be given effect to, it is necessary to analyse the relevant sections of the Code of Criminal Procedure and to interpret them, if their words permit, in such a manner as to give there a reasonable meaning . consistently with the general principles that govern the interpretation of statutes in general and of penal statutes in particular. These sections are "99A.‑(I) Where‑ (a) any newspaper, or book as defined in Registration of Books Act, 1867, or (b) any document, wherever printed, appears to the Provincial Government to contain any treasonable of seditious matter or matter which promotes or is intended to promote feeling of enmity or hatred between different classes of His Majesty's subjects or which is deliberately and maliciously intended to outrage the religious feelings of any Such class by insulting the religious beliefs of that class, there is to say, any matter the publication of which is punishable under section 123‑A or section 124‑A or section 153‑‑Y, or section 295‑A of the P. P. C., the Provincial Government may, by notification in the (official Gazette), static: the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and ever, copy of such book or other document to be forfeited ;. His Majesty and thereupon any, police‑officer may seize, the same wherever found in the Provinces and III, Capital of the Federation and any Magistrate may i ; warrant authorise any Police‑officer not below the rank of sub‑inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or tray be reasonably suspected to be. (2) In subsection (1) "document" includes also any painting, drawing or photograph, or other visible representation." "99‑

8. Any person having any interest in any newspaper, book or other document, in respect of which an order of forfeiture has been made under section 99A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order was made, did not contain airy treasonable or seditious or other matter of such a nature as is referred to in subsection (l; of section 99A. 99D. (1) On receipt of the application, the Special Bench shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of' which the application has been made, contained treasonable or (seditious or other matter of such a nature as is referred to in subsection (1) of section 99A), set aside the order of forfeiture. (2) Where there is a difference of Opinion among the Judges forming the Special Bench the decision shall be in accordance with the opinion of the majority of those Judges. 99G. . No order passed or action taken under section 99A shall be called in question in any Court otherwise than in accordance with the provisions of section 99B." It will be noticed that under section 99 1it is the opinion of the Provincial Government on the basis of which an order of forfeiture can be passed and that when the Provincial Government decides to forfeit a publication it has to state the grounds o; its opinion. Section 99B which gives to the aggrieved person a right to apply to the High Court must be read as referring back, as it expressly does, to the proceedings taken tinder section 99A. The section provides that the person aggrieved may "apply to the High Court to set aside such order on the ground that the issue of the newspaper or the book or other document in respect of which the order was made did not contain any treasonable or seditious or other matter of such a nature as is referred to in subsection (1) of section 99A." Now since the opinion of the Provincial Government is the determining factor in section 99A, and that opinion is made by that section to rest on certain grounds, the aggrieved party is only concerned to show that the opinion of the Provincial Government together with the ground on which it is based is incorrect and on general principles there should be no onus on the applicant to prove the further negative that the book does not contain any matter punishable under any other section not relied upon by the Provincial Government while ordering the forfeiture. A contrary cons truction of section 99B will not only be unreasonable but may lead to absurd results. Thus the Provincial Government may deliberately refrain from taking action if a publication is punishable under section 123A or section 124A, though it may not excuse the publication if it was written with the deliberate and malicious intention to outrage the religious feelings of a class by insulting its religion or religious beliefs. Similarly a Government may not mind where a publication merely creates hatred between different classes of subjects, if the hatred likely to be caused is not considered to be sufficiently strong for the communities concerned to break each others heads and the publication is otherwise a useful contribution to know ledge and literature. It would, therefore, be contrary to all principles to require the applicant to show that his work is not treasonable or seditious or likely to cause hatred between different classes where either the Government did not take that view of the matter or having taken 'that view was not willing to take action and the sole ground on which the order of forfeiture proceeded was that the author intended td outrage the religious feelings of a particular class. Thus the question that has to be determined in this appeal is whether the words of section 99B impose on the applicant the duty to show that the forfeited work does not come under section 123‑A, or section 124‑A or section 153‑A, when the only ground on which action has been taken by the Provincial Government is that the work was deliberately and maliciously ,intended, to outrage the religious feelings of a class by insulting its religion or religious feelings. In my opinion the words as the case may be are implicit after the word "matter" in section 99B because that section gives to the aggrieved person the right to apply to the High Court to set aside the order of the Provincial Government on the ground that the work does not contain any such matter as appeared .to the Provincial Government to necessitate the order of forfeiture, and an order under section 99‑A being an administrative or executive order, if section .998 were interpreted to mean that the applicant is to show not only that the grounds on which such order was made were wrong but also that the work did not contain any matter in respect of which the Provincial Government did not consider it expedient to take action, the interpretation will not only be inconsistent with general principle but will also give to the High Court executive powers which are expressly vested in the Provincial Government under section 99A. Such construction will also conflict with the principle of section 196, Criminal P. C. according to which no Court can take cognizance of offence under sections 123A, 124A, 153A and 95A of the P. P. C., except on a complaint by the Provincial Government. Of course it can be argued that when the counsel for the Provincial Government in the High Court support the order of forfeiture on other grounds, the principle of section 196 is not contravened. The argument is plausible but it does not carry the matter further because on the construction contended for by the Government even where counsel for the Government concedes that the publication does not offend, say against section 153A, it will still be the duty of the High Court to inquire whether in fact it does offend that provision or any other penal provision mentioned in section 99A on which reliance is not placed by the counsel for the Crown. It is a well‑recognized rule of construction that where a literal construction would lead to repugnancy to good sense, the Court may add words to the provision to be construed.) Thus in Becke v. Smith ((1836) 6 L J Ex.54) section 32, 7 Geo. 4, c. 57, which invalidated voluntary conveyances made by insolvents "within three months before the commencement of the imprisonment," which, literally, would exclude the time of imprisonment, was construed as if the words had been "within a period com mencing three months before the imprisonment." Similarly in Curtis v. Stovin ((1889) 22 Q B D 513) section 65, County Courts Act, 1888, which provided that, where the claim in an action of contract did not exceed 100, a Judge of the High Court might order the action to be tried in any county Court "in which the action night have been commenced," was construed with the addition of the words "if it had been a county Court action." It seems to me therefore that the words in section 99B "as i referred to in subsection. (1) of section 99A" refer to such nature of the matter as for the grounds stated appeared to the Provincial Government to justify an order under that section. Now if this be the correct interpretation of section 99B, a section which has not been referred by the High Court, there is no difficulty in transposing this interpretation to section 99D which uses the identical phraseology "seditious or treasonable or other matter of such a nature as is referred to in subsection (1) of section 99A". These words appear to be a compendious way of saying that under section 99B the application is to be made on the ground that the publication does not contain any such matter as appeared to the Provincial Government to justify action and that under section 99D if the bench hearing the application is not satisfied that the publication contains matter which appeared to the Provincial Government to justify forfeiture, the order shall be set aside. It will be useful to mention here that sections 99A to 99G were introduced in the Criminal P. C. by Act XIV of 1922 and in their original form were confined to cases where the publication of a matter appeared to the Provincial Government to be seditious and therefore punish able under section 124A of the Penal Code. The history of subsequent amendments to section 99A is that section 153A was added to it by Act XXXVI of 1926, section 123A by Act XIX of 1951 and section 295A by Act XXV of 1927. The section in its present form wad not therefore enacted as a considered whole at one time but was amended from time to time as it became necessary to empower the Provincial Government to forfeit publications which appeared to that Government to fall under certain other sections V the Penal Code, consequential changes having also been effected in the subsequent sections to bring them in accord with the main provision. As the legislature made these additions to the section it assumed that in sections 99B and 99D the issue to be raised between the Provincial Government and the aggrieved party would be the ground on which the Provincial Government had acted and not the general issue whether the prescribed publication also offended against any other section of the Penal Code which was not considered to be applicable by the Provincial Government. This interpretation of section 99B is necessitated by several well recognised rules of construction of statutes. Though a Court of law has nothing to do with the reasonableness or unreasonableness of d statutory provision, the reasonableness or otherwise of the irtt6rpretation is relevant to interpret what the Legislature has said, and ins determining either the general object of the Legislature or the 'meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles; should, in all cases of doubtful significance, be presumed to be true one. Thus in Churchwardens o Birmingham v. Shaw ((1849) 10 Q B 868) and several other cases cited at p. 192 of the tenth edition of Maxwell's Interpretation of Statutes an Act regulating local rates which gave an appeal against any rate to .the Quarter Sessions and provided, for enforcing its payment, that two, justices might issue a distress warrant against the goods of the defaulter if be did not, on being summoned; `proved to them that he was not chargeable with, or liable to pay such rate' was construed as not authorising the justices to enter upon an inquiry into the validity of the rate, if it was valid on its face, though, literally, the defaulter would unquestionably prove his non‑liability if he proved its invalidity, If the question of validity, which was left to the Quarter Sessions, was also open to the justices who were required to enforce the rate, they might decide against the validity of the rate after it had been adjudged valid by the quarter sessions, a conflict which could not readily be supposed to have been intended. The principle of the cases on which this statement of the rule is based by Maxwell is applicable to the present case because the construction of section 99B and section 99D which is relied on by the Crown would have the effect of converting the High Court into an administrative authority to order forfeiture of a work on a ground which in the opinion of the Provincial Government was either not a valid ground or not an expedient ground for forfeiture and of compelling the aggrieved party to complain to the High Court against grounds which were not even in the contemplation of the Provincial Government which under the statute is the sole judge of whether a publication should or should not be forfeited. Thus the more reasonable interpretation of sections 99B and 99D is that the aggrieved party can move the High Court only on the ground that the reasons for which the Provincial Government made the order were bad and that if the High Court finds that the ground stated for the forfeiture was erroneous, the order must be set aside but i would be unreasonable to ask the applicant to show that the order, could not be sustained on other grounds which were either not present to the mind of the Provincial Government or which it did not consider to be expedient to act upon. The contention of the Crown ,if accepted, will introduce the High Court in section 99A as an administrative authority whereas its true function under the statute is that of an appellate or revising authority entrusted with the duty of examining the grounds on which the Provincial Government Some cases were cited by the learned counsel for the Crown where sections 23 and 25 of the Press (Emergency Powers) Act, 1931, were construed in a manner in which the learned counsel for the Crown wishes section 99B and section 99D to be construed but it appears to me that these cases are not in point because the language of that Act is substantially different, though 1 may point out that there are at least two cases, one under that Act and the other under section 99D where the view taken accords with the interpre tation that I have put on sections 99B and 99D of the Criminal P. C. in this case. Thus in Emperor v. Baijnath Kedia (I L R 47 All. 298) it has been held that where a publication has been forfeited on the ground that it contains seditious matter, the only issue before the High Court in an application under section 99B is whether the publication was of that description. And in Vishnu Gangadhar Ketkar v. Government of Bombay (A I R 1945 Bom. 207 at p. 210) where counsel for the Government attempted to support the order of forfeiture on grounds different from those on which action had been taken by the Government the Special Bench observed: "Before going to the objected passages in the book, it is necessary to dispose of one general argument of the learned Advocate‑General. He says that we have to see whether the passages fall under any of the clauses (a) to (i) of sub section (1) of section 4, and not merely clauses (a) and/or (b), because the body of the notice given to the petitioner mentions `words of the nature described in section 4, sub section (1)' of the Act. He admits that in the statement of objected words attached to the notice, it is expressly mentioned that it is a statement of words falling under clause (a) and/or (b) of section 4 (1), but according to him the Government is not bound by that limitation as the notice itself is generally a under the whole of subsection (l). We are unable to accept .that contention. The statement is a part of the notice itself under section 3 (3) which requires a `notice in writing to the keeper .of the press stating or describing such words, etc.' The statement is, therefore, a statutory provision and is in the nature of a charge which gives particulars about the specific clauses of the subsection that are alleged 'o have been infringed. The petitioner has come to this Court to set aside an order which purports to be based on that charge. We do not think, therefore, that Government can now go behind or enlarge those particulars which are an integral part of the notice." Then it was pointed out by the learned counsel for the Crown that some curious results would follow from the present interpretation of sections 99B and 99D of the Code of Criminal Procedure. He contends that where the Provincial Government says no more than this that the publication contains words of the nature described in section 99A of the Code of Criminal Procedure without stating whether those words constitute an offence under any particular section of the Penal Code, the Crown, in reply to an application under section 99B, will be entitled to show that the words fall either under section 123A or section 124A or section 153A or section 295A of the Penal Code, and that thus the Government can, by its own laches or by a very easy device, manage to avoid the difficulty into which it has fallen in the present case. Under the law the Government is bound to state the grounds of its opinion and the provision requiring it to do so is mandatory. If, therefore, the Government wishes deliberately to evade the performance of a statutory duty, it is argued, it will be more favourably circumstanced when called upon to defend an order under section 99A than it would be if it attempted properly to discharge its statutory duty. We are not called upon to decide the question whether an order under section 99A can be revised by the High Court on the ground that it does not comply with the mandatory provisions of that section, or whether a suit in respect of it would lie on the ground that the order impugned was not in accordance with that section, because it is conceded by the appellant that if the Government ashes to take advantage of its own neglect in the manner indicated by the learned counsel for Crown it may be that the onus upon him of showing cause against forfeiture becomes heavier. The present case, he seeks to distinguish on the short ground that here the Provincial Government having decided to state the grounds, the High Court was not concerned with the question whether the order of forfeiture could be maintained on some other grounds not stated by the Provincial Government as a reason for the forfeiture. I think the contention is sound in law and must be accepted. I would; therefore, accept the appeal, reverse the judgment of the High Court and set aside the order of forfeiture. In view of the difficulty of the point involved I would order the parties to bear their own costs. SHAH,PBUDDIN, J.‑I agree. CORNELIUS, J.‑I agree. MUHAMMAD SHARIF, J.‑‑I agree. A. H. Appeal accepted.